MSNBC: A victory in bail reform for criminal justice advocates

A nationwide movement for bail reform scored a significant victory on Wednesday, as America’s largest city announced a new initiative to reduce the number of people it forces to await trial behind bars.

Starting next year, New York City will spend $17.8 million to supervise an estimated 3,000 low-risk defendants, instead of requiring them to post bail or face pre-trial detention, according to a statement by the mayor’s office. That supervision will include “regular check-ins” either in person or via text message, as well as the provision of drug or behavioral counseling, depending on the nature of the defendant’s alleged offense.

“There is a very real human cost to how our criminal justice system treats people while they wait for trial,” New York City Mayor Bill de Blasio said in the statement. “Money bail is a problem because — as the system currently operates in New York — some people are being detained based on the size of their bank account, not the risk they pose.”

Every night in the U.S., more than 730,000 people sleep in jail cells, solely because they don’t have the means to make bail, according to a recent study by the Vera Institute of Justice. That same study found that American municipalities spend $22 billion a year on jailing people, 75% of whom are awaiting trial for nonviolent offenses.

The ethical and fiscal concerns raised by such statistics have made transforming America’s bail system a priority of criminal justice reformers on both the right and left.

“People should maintain their liberty until they’re convicted,” Marc Levin, the director of Right On Crime, a conservative criminal justice think tank, told msnbc. “So I’m pleased with New York’s initiative and it’s certainly consistent with what we’ve been advocating.”

Contrary to popular assumptions, Levin believes that expanding the rights of accused criminals can actually benefit public safety.

“Defendants who can keep their jobs because they’re not in jail will pose less of a threat to the public than those who end up unemployed,” he said.

The New York Civil Liberties Union also praised the decision, calling it “an important step toward making our criminal justice system more just.”

However, some public defenders are concerned that the new supervisory measures could curtail the freedom of the accused in insidious ways.

“As the City creates new alternatives to money bail it should avoid creating new systems of supervision with onerous restrictions and mandates,” Executive Director of the Bronx Defenders Robin G. Steinberg told msnbc in a written statement. “Otherwise, this positive reform runs the risk of expanding surveillance over low income communities of color and recreating the problem of extracting punishment before conviction.”

According to the mayor’s office, 14% of New York City’s criminal defendants are held on bail each year — a much smaller percentage than many other municipalities. Still, even if the new initiative is successful, the city estimates that it will detain more than 40,000 people who fail to post bail next year.

That’s 40,000 too many for Alec Karakatsanis, a civil rights lawyer with the nonprofit Equal Justice Under the Law.

“New York City has been and will continue to be operating a blatantly unconstitutional system that keeps people in jail because of their poverty,” Karakatsanis told msnbc. “Nothing about this announcement changes that.”

Equal Justice Under the Law argues that by allowing some defendants to purchase their freedom while detaining those too poor to pay, the institution of bail violates the Equal Protection Clause of the 14th Amendment. The group has brought multiple class action lawsuits against municipalities based on that legal reasoning.

So while Karkatsanis welcomes any reduction in pre-trial incarceration, he and many other inmate advocates are reluctant to celebrate what they see as merely incremental victories.

“What New York did is a nice gesture. It’s a movement in a positive direction,” Karakatsanis said. “But the United States cages more human beings than any country in the recorded history of the world, and this does nothing to address the root of that problem.”